It is respectfully recommended that Plaintiff Lashaunna Aikens's motion for leave to proceed in forma pauperis ("IFP") (ECF No. 1) be granted and this case be dismissed with prejudice for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), as amendment would be futile.

II. REPORT

Plaintiff filed the instant lawsuit on February 25, 2019 seeking to proceed IFP. Plaintiff has filed four frivolous lawsuits in this court in the last three-plus years. See Aikens v. Western Psychiatric Inst. and Clinic of UPMC, 2:16-cv-395 (W.D. Pa. Apr. 5, 2016) (dismissed with prejudice as frivolous per Order of 4/19/2016 (ECF No. 9)); Aikens v. University of Pittsburgh's School of Dental Medicine, 2:16-cv-443 (W.D. Pa. Apr. 14, 2016) (dismissed with prejudice as frivolous per Order of 4/19/2016 (ECF No. 5)); Aikens v. UPMC Shadyside Hospital, 2:16-cv-454 (W.D. Pa. Apr. 18, 2016) (dismissed with prejudice as frivolous per Order of 4/19/2016 (ECF No. 5)); Aikens v. DNA Diagnostic Center, 2:18-cv-700 (W.D. Pa. May 25, 2018) (dismissed with prejudice as frivolous per Order of 9/18/18 (ECF No. 6)). In addition, in Aikens v. Second EastHills LP, 2:19-cv-00171-CB-CRE, a Report and Recommendation recommending the case be dismissed with prejudice is currently pending before the District Court judge assigned to the case. (ECF No. 2).

a. Motion for Leave to Proceed In Forma Pauperis

While 28 U.S.C. § 1915 authorizes litigants like Plaintiff to proceed IFP, such status is a privilege which may be denied when abused. After granting IFP status, the Court must dismiss the case sua sponte if: (i) the allegation of poverty is untrue; (ii) the action is frivolous or malicious; (iii) the complaint fails to state a claim upon which relief may be granted; or (iv) the complaint seeks money damages from a defendant who is immune from suit. 28 U.S.C. § 1915(e)(2). The screening procedures set forth in section 1915(e) apply to all IFP complaints, "not simply those filed by prisoners." Atamian v. Burns, 236 Fed. Appx. 753, 755 (3d Cir. 2007) (unpublished) (citations omitted).

In determining the sufficiency of a pro se complaint, the court must be mindful to construe it liberally in favor of the pro se plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). In other words, the court must "accept as true all of the allegations in the complaint [or removal] and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).

In performing a court's mandated function of sua sponte reviewing a complaint under 28 U.S.C. § 1915(e) to determine if it fails to state a claim upon which relief can be granted, a federal district court applies the same standard as applied to motions to dismiss under Federal Rule of Civil Procedure 12. See, e.g., Powell v. Hoover, 956 F. Supp. 565, 568 (M.D. Pa. 1997).

The court has reviewed Plaintiff's application to proceed IFP and finds that she has adequately showed that she is unable to pay the costs of these proceedings, including the filing fee. Deutsch v. United States, 67 F.3d 1080, 1084 n. 5 (3d Cir. 1995) ("leave to proceed in forma pauperis is based on a showing of indigence."). Therefore, Plaintiff's motion to proceed IFP is granted and her complaint will be reviewed under the appropriate standard.

b. Plaintiff's claims

In this case, Plaintiff's substantive allegations are as follows: "I was falsey [sic] acused [sic] of being born here also wrongful birth parents, and wrong blood type/medical records." See Pl.'s Statement of Claim (ECF No. 1-1 at 4). Additionally, she further states she is entitled to compensation "since being wrongfully exchanged at UPMC Susquehanna." (ECF No. 1-1 at 4). She includes as exhibits to her complaint her birth records, blood test results and discharge summary from Williamsport Hospital & Medical Center in Williamsport, Pennsylvania, dated October 1993. (ECF No. 1-2). She seeks one million dollars in damages. (ECF NO. 1-1 at 4).

Plaintiff has designated the basis for federal court jurisdiction in her complaint as being a federal question, specifically, "wrongful birth, wrong parents, wrong release to Shirley Caldwell Harbin." (ECF No. 1-1 at 3). She cites to no federal statute(s). It is apparent that Plaintiff seeks damages only from her purported "wrongful birth" which sounds solely in state law is not sufficient to confer federal jurisdiction under 28 U.S.C. § 1332. See e.g., Groves v. Wilson, 404 Fed. Appx. 705, 707 (3d Cir. 2010) (unpublished). Without more, these allegations do not confer jurisdiction upon this court and the complaint must be dismissed with prejudice under 28 U.S.C. § 1915(e)(2)(B) for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The court can conceive of no actionable federal claim based on the allegations in the Complaint and amendment would be futile.

Federal courts are courts of limited jurisdiction and do not have jurisdiction over ordinary malpractice or negligence disputes arising under state law absent diversity jurisdiction. Even if Plaintiff had indicated that the basis for our jurisdiction was diversity of citizenship, and assuming Plaintiff's claims survive the applicable statute of limitations, we do not have diversity jurisdiction, as both parties reside or have a principle place of business in Pennsylvania. (ECF No. 1-1 at 3, 4) --------

III. CONCLUSION

For the reasons set forth, it is respectfully recommended that this case be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction, as amended would be futile.

Therefore, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, and because Plaintiff is a non-electronically registered party, she has until March 22, 2019 to file objections to this report and recommendation. Failure to file timely objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).

DATED this 5th day of March, 2019.

Respectfully submitted,

s/Cynthia Reed Eddy

Chief United States Magistrate Judge cc: Honorable Cathy Bissoon

United States District Judge

via electronic filing

LASHAUNNA AIKENS

406 Short Canal Street

Pittsburgh, PA 15215

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